Co-regulatory scheme for Internet content:

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1 Joint meeting of Council of Australian University Directors (CAUDIT) and Council of Australian University Librarians (CAUL) Adelaide 10 March 2000 Co-regulatory scheme for Internet content: Operation of Australia s online-hotline Gareth Grainger Deputy Chairman Australian Broadcasting Authority

2 Introductory Remarks Thank you for the opportunity to be here today. After months of talking about the theory underpinning Australia s co-regulatory scheme for Internet content, which includes at the meeting of CAUDIT last September, it is pleasing to be able to present something about the practical operation of the scheme. That being said, it is early days in the life of the hotline and some of my comments are therefore preliminary in nature. The ABA started taking complaints on 1 January 2000 and while the legislation provides the legislative framework for the online-hotline s operation, we have been developing operational policy with each complaint investigation undertaken. What I d like to present today are the policies and procedures as they stand at the end of the first two months of hotline operation, recognising that they may change as the hotline matures. I d also like to provide a flavour of the number and nature of complaints received to date. Before I do, however, I think it would be useful to provide a brief overview of Australia s co-regulatory scheme for Internet content, in order to place the hotline in context. Overview of the co-regulatory scheme The co-regulatory scheme was established by amendments to the Broadcasting Services Act 1992 passed by the Federal Government in the middle of last year. (The Broadcasting Service Act is, of course, the legislation that governs the activities of the ABA). The scheme addresses risks associated with illegal content and with content that is unsuitable for children, and does so through a range of regulatory responses. It is based on industry compliance with codes of practice and the operation of a complaints hotline by the ABA. Australia s Internet Industry Association (IIA) developed three codes of practice in the second half of last year, two of which apply to Internet Service Providers (ISPs) while the third applies to Internet content hosts (ICHs). The ABA registered the three codes on 16 December 1999 and will be monitoring their operation. The codes provide industry with greater clarity as to what is expected of them under the co-regulatory scheme as well as providing Internet users with greater certainty as to what to expect from their service providers. In addition to monitoring the operation of the codes of practice and investigating complaints, the ABA has a number of other functions under the scheme including community education, research and international liaison. The ABA sees these as critical to the overall success of the co-regulatory scheme and is pursuing initiatives in relation to each function. In performing its role, the ABA is being guided by the principles laid down in the legislation of minimising the financial and administrative burdens on industry and encouraging the supply of Internet carriage services at performance standards that meet community needs. 2

3 And finally, it is important to note that the Federal Government s legislation only applies to the activities of ISPs and Internet content hosts (ICHs). The State and Territory Governments are developing uniform legislation that will complement the federal legislation and cover the activities of users and content creators. Complaint investigation procedures Moving to the specifics of the complaint investigation procedures, it is important at the outset to emphasise that the scheme is complaints-based. The ABA is not required to proactively search for and deal with all Internet content that may be prohibited. The Act defines prohibited content as material that has been classified RC (Refused Classification, i.e. material that is illegal in any medium) or X (i.e. sexually explicit material) by the National Classification Board. Content hosted in Australia that has been classified R (i.e. material considered unsuitable for people under 18 years of age because of violence, language, sexual content, adult themes or for some other reason) but does not have an adult verification mechanism to restrict access, is also prohibited. Action to be taken in relation to prohibited content that is subject to complaint differs depending on whether the content is hosted in Australia or hosted overseas. If it is hosted in Australia, the ABA issues take-down notices to the content host. If it is hosted overseas, the ABA notifies the makers of approved filter software in accordance with industry codes of practice (more on this later). It is important to note at this point that ABA decisions under the regulatory scheme are subject to judicial review processes, e.g. Administrative Appeals Tribunal review. It is also important to note that while industry bears the costs of compliance it does not bear the costs of classification. Evaluation procedures So how does the ABA evaluate Internet content that is subject of a complaint and how and when does that content get classified? Starting with the receipt of a complaint, once the ABA has established that the complaint is genuine and determined where the content is hosted, the next step is to make an initial assessment of the likely classification of the content. The likely classification will determine whether the content is potential prohibited content. I use the word potential quite deliberately here, as it is only prohibited once it has been classified by the National Classification Board - the Government agency with responsibility for classifying films, videos, publications and computer games. 3

4 In making the initial assessment of the classification, the ABA is guided by the Classification Board s classification guidelines that have been developed and refined over time through a process involving extensive public consultation. The guidelines are publicly available at the web site of the Office of Film and Literature Classification the administrative body that supports the Classification Board. Internet content is being classified using the cinema and video guidelines which are available at: As mentioned previously, Internet content classified RC or X is prohibited content regardless of where it is hosted. These classifications include: - material containing detailed instruction in crime, violence or drug use, - child pornography, - bestiality, - material that is excessively violent or sexually violent, - material containing explicit sexual activity between consenting adults. The R classification includes: - material containing excessive and/or strong violence or sexual violence, - material containing implied or simulated sexual activity, and material which deals with issues that require an adult perspective. Of course, as I indicated earlier, this material is only prohibited if hosted in Australia and not subject to an adult verification mechanism. The classification guidelines provide quite detailed descriptions of the type of material included in each of the above classifications. They also make reference to a number of matters to be taken into account in making a classification decision including: - the literary, artistic or educational merit (if any) of the material, and - the general character of the material, including whether it is of a medical, legal or scientific character. Educational or artistic content is therefore not treated in the same way as other content for the purpose of classification although no doubt there may be arguments as to what constitutes educational or artistic merit. If the ABA s initial assessment is that the content is likely to be classified RC or X and the content is hosted in Australia, the ABA issues an interim take-down notice to the content host that is the person or company that owns or operates the server on which the content resides. At the same time, the content is referred to the National Classification Board for classification. Where the Classification Board confirms that the content is prohibited, a final take-down notice is issued. In relation to content likely to be classified R (hosted in Australia and not subject to an adult verification mechanism), the process is slightly different in that an interim takedown notice is not issued. Rather the content host is advised of the decision to ask the Classification Board for a classification giving them the opportunity to organise with the content provider for an adult verification mechanism to be put in place before the process reaches the stage where a take-down notice is required. So in summary, the process involves an informed initial assessment of the content by the ABA and actual classification of the content by the National Classification Board following established procedures and guidelines. In addition, it is important to point out 4

5 that there is provision in the legislation for a content host or a person aggrieved by a classification to appeal to Australia s Classification Review Board. Assessment procedures for content hosted outside Australia are somewhat less formal. There is no requirement on the ABA to refer the content for classification by the Classification Board. However, we have chosen to do so in some cases in order to establish benchmarks for future investigations. These cases have involved content that is different from the type of material usually classified under the cinema and video guidelines, for example, text-based content. In response to complaints about content hosted outside of Australia, if the ABA is satisfied that the content is prohibited or potential prohibited content, the ABA refers the content to the makers of approved filter software in accordance with provisions in the IIA codes of practice (discussed under Overview of Co-regulatory Scheme ). The second IIA code for ISPs sets out procedures to be followed in relation to prohibited content hosted outside Australia. It outlines the ABA referral of content to the makers of approved filters and provides a list of these filters. It also requires ISPs to provide their subscribers with one of the approved filters unless there is a designated alternative access prevention arrangement in place. Some of the approved filters are client-side filters while others are products that enable filtering at the ISP level. Notification to law enforcement agencies If the prohibited content is also sufficiently serious (e.g. illegal material such as child pornography), the ABA will refer the material to the appropriate law enforcement agency. To date, four (4) of the complaints investigated have involved material that has reached the sufficiently serious threshold and have been referred to the police for investigation. The ABA is in discussions with the Australian Federal Police and State/Territory police services to establish Memorandums of Understanding (MOUs) regarding the sharing of information and the possible deferral of ABA investigations at the request of the agency (another provision of the regulatory scheme). Deferral would occur where the police advise the ABA that proceeding with the investigation could prejudice a criminal investigation. Complaints to date I have touched on the nature of some of the complaints we have been investigating, however, I thought you might be interested in an overview of complaints received to date. As at the end of February, that is, the scheme s second month of operation, the ABA had received 85 complaints. Action arising out of completed investigations relating to these complaints includes the issuing of 18 final take-down notices to content hosts in relation to Australian hosted content. A majority of these notices relate to content that was classified RC (Refused Classification) by the Classification Board (predominantly content of a sexual nature with underage connotations ). Over 30 items have been referred to the makers of approved filters concerning content hosted overseas. 5

6 Community awareness and education The ABA is currently implementing a hotline awareness campaign targeted at users who are parents or carers of children. For example, promotional activities include: the distribution of a poster to libraries and schools, as well as to other organisations on request; advertising of the online-hotline and the Australian Families Guide to the Internet has been booked or is being pursued in magazines and periodic publications that have parents and/or families as their target audience; press kits, comprising the online-hotline poster and Australian Families Guide to the Internet brochure, are planned for distribution to a number of community organisations and magazine publishers; and banner advertising on selected web sites is also being considered. Promotion of the online-hotline is one aspect of the community education function that the ABA will be performing which is a critical part of the co-regulatory scheme. Industry also has a community awareness and education role to play as outlined in the IIA codes of practice. The codes require ISPs and ICHs to provide their users with information about supervising and controlling children's access to Internet content including the use of filtering software and labelling systems. The codes also require industry to inform their subscribers of their right to make complaints to the ABA and of the procedures for doing so. The third player in the community education area is the community/industry advisory body known as NetAlert. NetAlert was established late last year and has a range of functions including being consulted on the development and review of industry codes of practice and research into the development of filtering and labelling technologies. Its community education role is likely to be one of its most important and the ABA will be working closely with NetAlert to coordinate activities in this critical area. Evaluation of the scheme While Australia s regulatory scheme for Internet content is still in its early days, there are already plans for review of its operation at a number of levels. These include six monthly reports to the Minister on the operation of the scheme including the hotline, a review of the industry codes of practice within 18 months, and review of the scheme overall before January The scheme will therefore be subject to ongoing scrutiny and will no doubt evolve over time. 6

7 Concluding remarks Responsible online content regulation will help to create an environment in which the Internet's positive opportunities and advantages are able to be nurtured, developed and accessed by a growing number of citizens, while allowing the proper concerns of current and future users to be addressed. However, the Internet presents some enormous challenges in relation to content, and debate continues as to appropriate responses by governments. Even with the assistance of detailed research and policy work, there is no universal consensus about these matters. Australia has adopted one approach to the issues of 'illegal' content and content which may be unsuitable for children. The ABA will continue its work with industry, law enforcement agencies, community groups, parents and caregivers to ensure that this approach is practical, proportionate, and workable in the new communications environment. 7

8 Attachment Guidelines for the Classification of Films and Videotapes 15 April 1999 R RESTRICTED (Restricted to adults 18 years and over) The R category is legally restricted to adults. Material which is given a restricted classification is unsuitable for those under 18 years of age. Material classified R deals with issues or contains depictions which require an adult perspective. The classification is not intended as a comment on the quality of the material. Some material may be offensive to some sections of the adult community. Material which promotes or incites or instructs in matters of crime and/or violence is not permitted. Violence: Depictions of violence which are excessive will not be permitted. Strong depictions of realistic violence may be shown but depictions with a high degree of impact should not be gratuitous or exploitative. Sexual violence may only be implied and should not be detailed. Depictions must not be frequent, gratuitous or exploitative. Gratuitous, exploitative or offensive depictions of cruelty or real violence will not be permitted. Sex: Sexual activity may be realistically simulated; the general rule is simulation, yes - the real thing, no. Nudity in a sexual context should not include obvious genital contact. Verbal references may be more detailed than depictions. Coarse Language: There are virtually no restrictions on coarse language at R level. Adult Themes: The treatment of any themes with a very high degree of intensity should not be exploitative. Drug Use: Drug use may be shown but not gratuitously detailed. Drug use should not be promoted or encouraged. Detailed instruction in drug misuse is not permitted. 8

9 X CONTAINS SEXUALLY EXPLICIT MATERIAL (Restricted to adults 18 years and over*) * Available only on video; available only in the ACT and Northern Territory This classification is a special and legally restricted category which only contains sexually explicit material. That is material which contains real depictions of actual sexual intercourse and other sexual activity between consenting adults, including mild fetishes. No depiction of sexual violence, sexualised violence or coercion, offensive fetishes, or depictions which purposefully debase or abuse for the enjoyment of viewers is permitted in this classification. 9

10 RC REFUSED CLASSIFICATION As pointed out in the introduction, films and videos must be classified. A film or video which does not have the authorised classification symbols or the consumer advice is either an unclassified film or video, or it has been refused classification. Films or videos which contain elements beyond those set out in the above classification categories are refused classification. Films or videos which fall within the criteria for refused classification cannot be legally brought into Australia. The Classification Code sets out the criteria for refusing to classify a film or video. The criteria fall into three categories. These include films that: depict, express or otherwise deal with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in such a way that they offend against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that they should be classified RC. depict in a way that is likely to cause offence to a reasonable adult a person who is or who looks like a child under 16 (whether or not engaged in sexual activity), or; promote, incite or instruct in matters of crime or violence. Films and videos will be refused classification if they appear to purposefully debase or abuse for the enjoyment of viewers, and which lack moral, artistic or other values, to the extent that they offend against generally accepted standards of morality, decency and propriety. Films and videos will be refused classification: (a) if they promote or provide instruction in paedophile activity; or if they contain: (b) depictions of child sexual abuse or any other exploitative or offensive depictions involving a person who is or who looks like a child under 16; (c) detailed instruction in: (i) matters of crime or violence, (ii) the use of proscribed drugs; (d) depictions of practices such as bestiality; or if they contain gratuitous, exploitative or offensive depictions of: (e) violence with a very high degree of impact or which are excessively frequent, prolonged or detailed; (f) cruelty or real violence which are very detailed or which have a high impact; (g) sexual violence; (h) sexual activity accompanied by fetishes or practices which are offensive or abhorrent; (i) incest fantasies or other fantasies which are offensive or abhorrent. 10